Chapter 48

48.434 Note NOTE: 1997 Wis. Act 104, which affected this section, contains explanatory notes.

48.435 48.435 Custody of children. The mother of a nonmarital child has legal custody of the child unless the court grants legal custody to another person or transfers legal custody to an agency.

48.435 History History: 1979 c. 330; 1983 a. 447.

48.437 48.437 Change in placement; posttermination of parental rights.

48.437(1) (1) Request by guardian or prosecutor.

48.437(1)(a) (a) Notice; information required.

48.437(1)(a)1. 1. The agency appointed as the guardian of a child who is subject to a guardianship order under s. 48.427 (3m) (a) 1. to 4., (am), or (b), the district attorney, or the corporation counsel may request a change in the placement of the child by causing written notice of the proposed change in placement to be sent to the child, the child’s counsel or guardian ad litem, the legal custodian of the child, any foster parent or other physical custodian described in s. 48.62 (2) of the child, the operator of the facility in which the child is living, any agency responsible for securing the adoption of the child or for establishing the child in a permanent family setting, and, if the child is an Indian child who has been removed from the home of his or her parent or Indian custodian, the Indian child’s Indian custodian and tribe.

48.437(1)(a)2. 2. The notice shall contain the name and address of the new placement, the reasons for the change in placement, whether the new placement is certified under s. 48.675, a statement describing why the new placement is preferable to the present placement, a statement of how the new placement satisfies the objectives of the treatment plan or permanency plan ordered by the court, and, if the child is an Indian child who has been removed from the home of his or her parent or Indian custodian, a statement as to whether the new placement is in compliance with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c) and, if the new placement is not in compliance with that order, specific information showing good cause, as described in s. 48.028 (7) (e), for departing from that order. The person sending the notice shall file the notice with the court on the same day the notice is sent.

48.437(1)(a)3. 3. If the proposed change in placement would place the child in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the agency appointed as the guardian of the child shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including all of the following, to the court and all persons who are required to receive the notice under subd. 1. no later than the filing of that notice or, if not available by that time, and except as provided under subd. 4., no later than 10 days after the notice is filed:

48.437(1)(a)3.a. a. Whether the proposed placement will provide the child with the most effective and appropriate level of care in the least restrictive environment.

48.437(1)(a)3.b. b. How the placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan.

48.437(1)(a)3.c. c. The reasons why the child’s needs can or cannot be met by the child’s family or in a foster home. A shortage or lack of foster homes is not an acceptable reason for determining that the child’s needs cannot be met in a foster home.

48.437(1)(a)3.d. d. The placement preference of the family permanency team under s. 48.38 (3m) and, if that preference is not the placement recommended by the qualified individual, why that recommended placement is not preferred.

48.437(1)(a)4. 4. If, for good cause shown, the information required to be submitted under subd. 3. is not available by the deadline under that subdivision, the agency appointed as the guardian of the child shall submit it no later than 30 days after the date on which the placement is made.

48.437(1)(bm) (bm) Hearing; order. On receipt of the notice under par. (a), the court shall review the notice and decide whether to hold a hearing on the matter prior to ordering any change in placement or to enter an order changing the child’s placement as proposed in the notice without a hearing. If the court decides to hold a hearing on the matter, within 10 days after the notice is filed with the court, but at least 3 days before the hearing, the court shall provide notice of the hearing to the agency appointed as the guardian of the child, the district attorney or corporation counsel, and all persons who are required to receive notice under par. (a). If the court decides not to hold a hearing on the matter, within 10 days after the notice is filed with the court, the court, without a hearing, shall enter an order changing the child’s placement as proposed in the notice and shall provide a copy of the order to the agency appointed as the guardian of the child, the district attorney or corporation counsel, and all persons who are required to receive notice under par. (a). The child’s placement may not be changed until 10 days after the notice under par. (a) is filed with the court unless the court, without a hearing, enters an order changing the child’s placement sooner.

48.437(1)(c) (c) Contents of order. The change-in-placement order shall contain the applicable order under sub. (2v) (a), the applicable statement under sub. (2v) (b), and the applicable findings under sub. (2v) (c) and (d). If the court changes the placement of an Indian child who has been removed from the home of his or her parent or Indian custodian, the change-in-placement order shall, in addition, comply with the order of placement preference under s. 48.028 (7) (b) or, if applicable, s. 48.028 (7) (c), unless the court finds good cause, as described in s. 48.028 (7) (e), for departing from that order.

48.437(2) (2) Emergency change in placement.

48.437(2)(a) (a) If emergency conditions necessitate an immediate change in the placement of a child who is the subject of a guardianship order under s. 48.427 (3m) (a) 1. to 4., (am), or (b), the agency appointed as the guardian of the child may remove the child to a new placement without the prior notice under sub. (1) (a). Notice of the emergency change in placement shall be sent to all persons specified in sub. (1) (a) 1. and filed with the court within 48 hours after the emergency change in placement. The court may hold a hearing on the matter as provided in sub. (1) (bm). In emergency situations, a child may be placed in a licensed public or private shelter care facility as a transitional placement for not more than 20 days or in any placement authorized under s. 48.345 (3).

48.437(2)(b) (b)

48.437(2)(b)1. 1. If the emergency change in placement under par. (a) results in a child being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the qualified individual shall conduct a standardized assessment and the agency appointed as the guardian of the child shall submit it and the recommendation of the qualified individual who conducted the standardized assessment, including the information specified under sub. (1) (a) 3., with the notice under par. (a) or, if not available at that time, and except as provided under subd. 2., no later than 10 days after the filing of that notice.

48.437(2)(b)2. 2. If, for good cause shown, the information required to be submitted under subd. 1. is not available by the deadline under that subdivision, the agency appointed as the guardian of the child shall submit it no later than 30 days after the date on which the placement was made.

48.437(2)(c) (c) If the emergency change in placement under par. (a) results in a child being placed in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the court shall, no later than 60 days after the placement is made, issue an order making the findings under sub. (2v) (d) 1., the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment.

48.437(2r) (2r) Removal from foster home, sustaining parent, or other physical custodian. If a hearing is held under sub. (1) (bm) and the change in placement would remove a child from a foster home or other placement with a physical custodian described in s. 48.62 (2), the court shall give the foster parent or other physical custodian a right to be heard at the hearing by permitting the foster parent or other physical custodian to make a written or oral statement during the hearing or to submit a written statement prior to the hearing relating to the child and the requested change in placement. A foster parent or other physical custodian described in s. 48.62 (2) who receives notice of a hearing under sub. (1) (bm) and a right to be heard under this subsection does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and right to be heard.

48.437(2v) (2v) Change-in-placement order. A change-in-placement order under sub. (1) shall contain all of the following:

48.437(2v)(a) (a) If the change-in-placement order changes the placement of a child who is under the guardianship of the department or a county department, an order ordering the child to be continued in the placement and care responsibility of the department or county department as required under 42 USC 672 (a) (2) and assigning the department or county department continued primary responsibility for providing services to the child.

48.437(2v)(b) (b) If the change-in-placement order changes the placement of the child to a placement recommended by the agency appointed as the guardian of the child under s. 48.427 (3m) (a) 1. to 4., (am), or (b), a statement that the court approves the placement recommended by that agency or, if the change-in-placement order changes the placement of the child to a placement that is not a placement recommended by that agency, a statement that the court has given bona fide consideration to the recommendations made by that agency and all parties relating to the child’s placement.

48.437(2v)(c) (c) If the child has one or more siblings, as defined in s. 48.38 (4) (br) 1., who have been placed outside the home or for whom a change in placement to a placement outside the home is requested, a finding as to whether the agency appointed as the child’s guardian under s. 48.427 (3m) (a) 1. to 4., (am), or (b) has made reasonable efforts to place the child in a placement that enables the sibling group to remain together, unless the court determines that a joint placement would be contrary to the safety or well-being of the child or any of those siblings, in which case the court shall order the agency to make reasonable efforts to provide for frequent visitation or other ongoing interaction between the child and the siblings, unless the court determines that such visitation or interaction would be contrary to the safety or well-being of the child or any of those siblings.

48.437(2v)(d) (d)

48.437(2v)(d)1. 1. Except as provided in subd. 2., if the court changes the placement to a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675, the change-in-placement order shall contain a finding as to each of the following, the answers to which do not affect whether the placement may be made, after considering the standardized assessment and the recommendation of the qualified individual who conducted the standardized assessment:

48.437(2v)(d)1.a. a. Whether the needs of the child can be met through placement in a foster home.

48.437(2v)(d)1.b. b. Whether placement of the child in a residential care center for children and youth, group home, or shelter care facility certified under s. 48.675 provides the most effective and appropriate level of care for the child in the least restrictive environment.

48.437(2v)(d)1.c. c. Whether the placement is consistent with the short-term and long-term goals for the child, as specified in the permanency plan.

48.437(2v)(d)1.d. d. Whether the court approves or disapproves the placement.

48.437(2v)(d)2. 2. If the results of the standardized assessment and recommendation of the qualified individual who conducted the standardized assessment are not available at the time of the order, the court shall defer making the findings under subd. 1. as provided in this subdivision. No later than 60 days after the date on which the placement was made, the court shall issue an order making the findings under subd. 1.

48.437(3) (3) Prohibited placements based on homicide of parent. Except as provided in this subsection, the court may not change a child’s placement to a placement in the home of a person who has been convicted of the homicide of a parent of the child under s. 940.01 or 940.05, if the conviction has not been reversed, set aside, or vacated. This subsection does not apply if the court determines by clear and convincing evidence that the placement would be in the best interests of the child. The court shall consider the wishes of the child in making that determination.

48.437(4) (4) Effective period of order. A change-in-placement order under this section remains in effect until the order is modified or terminated by further order of the court. An order granting adoption of the child or transferring guardianship and custody of the child to an individual terminates a change-in-placement order under this section.

48.437 History History: 2015 a. 373; 2017 a. 365 ss. 16, 111; 2021 a. 42; 2021 a. 240 s. 30.

subch. IX of ch. 48 SUBCHAPTER IX

JURISDICTION OVER PERSON 17 OR OLDER

48.44 48.44 Jurisdiction over persons 17 or older. The court has jurisdiction over persons 17 years of age or older as provided under ss. 48.133, 48.355 (4), 48.357 (6), 48.365 (5), and 48.45 and as otherwise specifically provided in this chapter.

48.44 History History: 1971 c. 213 s. 5; 1975 c. 39; 1977 c. 354; 1987 a. 27; 1989 a. 121; 1995 a. 27; 1997 a. 35, 292; 2013 a. 334.

48.45 48.45 Orders applicable to adults.

48.45(1) (1) 

48.45(1)(a) (a) If in the hearing of a case of a child alleged to be in a condition described in s. 48.13 it appears that any person 17 years of age or older has been guilty of contributing to, encouraging, or tending to cause by any act or omission, such condition of the child, the judge may make orders with respect to the conduct of such person in his or her relationship to the child, including orders determining the ability of the person to provide for the maintenance or care of the child and directing when, how and where funds for the maintenance or care shall be paid.

48.45(1)(am) (am) If in the hearing of a case of an unborn child and the unborn child’s expectant mother alleged to be in a condition described in s. 48.133 it appears that any person 17 years of age or over has been guilty of contributing to, encouraging, or tending to cause by any act or omission, such condition of the unborn child and expectant mother, the judge may make orders with respect to the conduct of such person in his or her relationship to the unborn child and expectant mother.

48.45(1)(b) (b) An act or failure to act contributes to a condition of a child as described in s. 48.13 or an unborn child and the unborn child’s expectant mother as described in s. 48.133, although the child is not actually adjudicated to come within the provisions of s. 48.13 or the unborn child and expectant mother are not actually adjudicated to come within the provisions of s. 48.133, if the natural and probable consequences of that act or failure to act would be to cause the child to come within the provisions of s. 48.13 or the unborn child and expectant mother to come within the provisions of s. 48.133.

48.45(1m) (1m) 

48.45(1m)(a) (a) In a proceeding in which a child has been found to be in need of protection or services under s. 48.13, the judge may order the child’s parent, guardian or legal custodian to comply with any conditions determined by the judge to be necessary for the child’s welfare. An order under this paragraph may include an order to participate in mental health treatment, anger management, individual or family counseling or parent training and education and to make a reasonable contribution, based on ability to pay, toward the cost of those services.

48.45(1m)(b) (b) A judge may not order inpatient treatment under par. (a) for a child’s parent, guardian or legal custodian. All inpatient treatment commitments or admissions must be conducted in accordance with ch. 51.

48.45(1r) (1r) In a proceeding in which an unborn child has been found to be in need of protection or services under s. 48.133, the judge may impose on the expectant mother any disposition permitted under s. 48.347 (1) to (6).

48.45(2) (2) No order under sub. (1) (a) or (am) or (1m) (a) may be entered until the person who is the subject of the contemplated order is given an opportunity to be heard on the contemplated order. The court shall cause notice of the time, place and purpose of the hearing to be served on the person personally at least 10 days before the date of hearing. The procedure in these cases shall, as far as practicable, be the same as in other cases in the court. At the hearing the person may be represented by counsel and may produce and cross-examine witnesses. Any person who fails to comply with any order issued by a court under sub. (1) (a) or (am) or (1m) (a) may be proceeded against for contempt of court. If the person’s conduct involves a crime, the person may be proceeded against under the criminal law.

48.45(3) (3) If it appears at a court hearing that any person 17 years of age or older has violated s. 948.40, the judge shall refer the record to the district attorney for criminal proceedings as may be warranted in the district attorney’s judgment. This subsection does not prevent prosecution of violations of s. 948.40 without the prior reference by the judge to the district attorney, as in other criminal cases.

48.45 History History: 1977 c. 354, 449; 1987 a. 332 s. 64; 1989 a. 121; 1993 a. 118, 377; 1995 a. 27, 77; 1997 a. 35, 292.

48.45 Annotation Involuntary commitment was not authorized by this section. C.S. v. Racine County, 137 Wis. 2d 217, 404 N.W.2d 79 (Ct. App. 1987).

subch. X of ch. 48 SUBCHAPTER X

REHEARING AND APPEAL

48.46 48.46 New evidence; relief from judgment terminating parental rights.

48.46(1) (1) Except as provided in subs. (1m), (2), and (3), the child whose status is adjudicated by the court, the parent, guardian, or legal custodian of that child, the guardian ad litem of an unborn child whose status is adjudicated by the court, or the expectant mother of that unborn child may at any time within one year after the entering of the court’s order petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court’s original adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing.

48.46(1m) (1m) Except as provided in sub. (2), the parent, guardian or legal custodian of the child or the child whose status is adjudicated by the court in an order entered under s. 48.43 or an order adjudicating paternity under subch. VIII may, within the time permitted under this subsection, petition the court for a rehearing on the ground that new evidence has been discovered affecting the advisability of the court’s adjudication. Upon a showing that such evidence does exist, the court shall order a new hearing. A petition under this subsection shall be filed within one year after the date on which the order under s. 48.43 or order adjudicating paternity under subch. VIII is entered, unless within that one-year period a court in this state or in another jurisdiction enters an order granting adoption of the child, in which case a petition under this subsection shall be filed before the date on which the order granting adoption is entered or within 30 days after the date on which the order under s. 48.43 or order adjudicating paternity under subch. VIII is entered, whichever is later.

48.46(2) (2) A parent who has consented to the termination of his or her parental rights under s. 48.41 or who did not contest the petition initiating the proceeding in which his or her parental rights were terminated may move the court for relief from the judgment on any of the grounds specified in s. 806.07 (1) (a), (b), (c), (d) or (f). Any such motion shall be filed within 30 days after the entry of the judgment or order terminating parental rights, unless the parent files a timely notice of intent to pursue relief from the judgment under s. 808.04 (7m), in which case the motion shall be filed within the time permitted by s. 809.107 (5). A motion under this subsection does not affect the finality or suspend the operation of the judgment or order terminating parental rights. A parent who has consented to the termination of his or her parental rights to an Indian child under s. 48.41 (2) (e) may also move for relief from the judgment under s. 48.028 (5) (c) or (6). Motions under this subsection or s. 48.028 (5) (c) or (6) and appeals to the court of appeals shall be the exclusive remedies for such a parent to obtain a new hearing in a termination of parental rights proceeding.

48.46(3) (3) An adoptive parent who has been granted adoption of a child under s. 48.91 (3) may not petition the court for a rehearing under sub. (1) or move the court under s. 806.07 for relief from the order granting adoption. A petition for termination of parental rights under s. 48.42 and an appeal to the court of appeals shall be the exclusive remedies for an adoptive parent who wishes to end his or her parental relationship with his or her adopted child.

48.46 History History: 1977 c. 449; 1979 c. 300; 1987 a. 383; Sup. Ct. Order, 146 Wis. 2d xxxiii (1988); 1995 a. 275; 1997 a. 104, 114, 252, 292; 2009 a. 94; 2013 a. 170.

48.46 Note Judicial Council Note, 1988: Sub. (2) limits the remedies for relief from a judgment or order terminating parental rights when the aggrieved party is a parent whose rights were terminated by consent or who has failed to contest the petition. The motion for relief from the judgment or order must be filed within 40 days after entry of the judgment or order terminating parental rights, unless the appellate process is timely initiated, in which case the motion must be filed within 60 days after service of the transcript. The court must grant a rehearing upon a prima facie showing of one or more of the following grounds: mistake, inadvertence, surprise or excusable neglect; newly discovered evidence justifying a new hearing under s. 805.15 (3); fraud, misrepresentation or other misconduct of an adverse party; the judgment or order is void; the judgment or order is based upon a prior judgment which has been reversed or otherwise vacated. [Re Order effective Jan. 1, 1989]

48.46 Annotation Affidavits by a mother that she consented to a termination of her parental rights under duress and by her attorney as to what the attorney expected to prove were not sufficient for a rehearing. Schroud v. Milwaukee County Department of Public Welfare, 53 Wis. 2d 650, 193 N.W.2d 671 (1972).

48.465 48.465 Motion for postdisposition relief and appeal.

48.465(1) (1) Appeal by respondent. A motion for postdisposition relief from a final order or judgment by a person subject to this chapter shall be made in the time and manner provided in ss. 809.30 to 809.32. An appeal from a final order or judgment entered under this chapter or from an order denying a motion for postdisposition relief by a person subject to this chapter shall be taken in the time and manner provided in ss. 808.04 (3) and 809.30 to 809.32. The person shall file a motion for postdisposition relief in circuit court before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.

48.465(2) (2) Appeal by state. An appeal by the state from a final judgment or order under this chapter may be taken to the court of appeals within the time specified in s. 808.04 (4) and in the manner provided for civil appeals under chs. 808 and 809.

48.465(3) (3) Exceptions. This section does not apply to a termination of parental rights case under s. 48.43, to a parental consent to abortion case under s. 48.375 (7), or to a guardianship proceeding under s. 48.9795.

48.465 History History: 2009 a. 26; 2019 a. 109.

subch. XI of ch. 48 SUBCHAPTER XI

PURPOSE, DUTIES, AND AUTHORITY OF DEPARTMENT

48.468 48.468 Purpose of department. The purpose of the department is to focus on integrating the child welfare, child care, and child support services provided in this state and the services provided under the Wisconsin Works program and on increasing collaboration and efficiency in providing those services.

48.468 History History: 2007 a. 20.

48.47 48.47 Duties of department. The department shall do all of the following:

48.47(3) (3) Trustee duty. When ordered by the court, act as trustee of funds paid for the support of any child if appointed by the court or a circuit court commissioner under s. 767.82 (7).

48.47(4) (4) Education and prevention. Develop and maintain education and prevention programs that the department considers to be proper.

48.47(7) (7) Children and youth.

48.47(7)(cm) (cm) Promote the establishment of adequate child care facilities and services in this state by providing start-up grants to newly operating child care facilities and services under rules promulgated by the department.

48.47(7)(d) (d) With the assistance of the judicial conference, develop simplified forms for filing petitions for child abuse restraining orders and injunctions under s. 813.122. The department shall provide these forms to clerks of circuit court without cost.

48.47(7)(f) (f) As part of its biennial budget request under s. 16.42, submit a request for funding for child abuse prevention efforts in an amount equal to or greater than 1 percent of the total proposed budget of the department of corrections for the same biennium, as indicated by the estimate provided by the department of corrections under s. 301.03 (14).

48.47(7)(h) (h) Contract for the provision of a centralized unit for determining whether the cost of providing care for a child is eligible for reimbursement under 42 USC 670 to 679a.

48.47(7g) (7g) Statewide automated child welfare information system. Establish a statewide automated child welfare information system. Notwithstanding ss. 46.2895 (9), 48.396 (1) and (2) (a), 48.78 (2) (a), 48.981 (7), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.22 (3), 146.82, 252.11 (7), 252.15, 253.07 (3) (c), 938.396 (1) (a) and (2), and 938.78 (2) (a), the department may enter the content of any record kept or information received by the department into the statewide automated child welfare information system, and a county department under s. 46.215, 46.22, or 46.23, the department, or any other organization that has entered into an information sharing and access agreement with the department or any of those county departments and that has been approved for access to the statewide automated child welfare information system by the department may have access to information that is maintained in that system, if necessary to enable the county department, department, or organization to perform its duties under this chapter, ch. 46, 51, 55, or 938, or 42 USC 670 to 679b or to coordinate the delivery of services under this chapter, ch. 46, 51, 55, or 938, or 42 USC 670 to 679b. The department may also transfer information that is maintained in the system to a court under s. 48.396 (3) (bm), and the court and the director of state courts may allow access to that information as provided in s. 48.396 (3) (c) 2. In addition, the department, a county department under s. 46.215, 46.22, or 46.23 or any other organization that has entered into an information sharing and access agreement, and that has been approved for access to the system, under this subsection may transfer information about a missing child that is maintained in the system to the National Center for Missing and Exploited Children under s. 48.78 (2m) (c) or 938.78 (2m) (c).

48.47(8) (8) Annual reports. Annually, prepare and transmit to the governor, and to the legislature under s. 13.172 (2), a report on all of the following, which shall be the subject of a public hearing, conducted no less often than annually, by the appropriate standing committees of the legislature:

48.47(8)(a) (a) The status of child abuse and neglect programs and on the status of unborn child abuse programs. The report shall include a full statistical analysis of the child abuse and neglect reports, and the unborn child abuse reports, made through the last calendar year, an evaluation of services offered under this section and their effectiveness, and recommendations for additional legislative and other action to fulfill the purpose of this section. The department shall provide statistical breakdowns by county, if requested by a county.

48.47(8)(b) (b) The number of adoptions under the special needs adoption program granted in the preceding calendar year and the costs to the state for services relating to those adoptions.

48.47(8)(c) (c) The number of children during the preceding calendar year who entered out-of-home care under the placement and care responsibility of a county department or the department under ch. 48 or 938 after finalization of an adoption or guardianship. For each child enumerated in the report, the report may include information concerning the length of the adoption or guardianship, the age of the child at the time of the adoption or guardianship, the age at which the child entered out-of-home care, the type of agency involved in making the adoptive or guardianship placement, and any other information determined necessary to better understand factors associated with a child entering out-of-home care after finalization of an adoption or guardianship.

48.47(8)(d) (d) A summary of information in the summary reports required under s. 48.981 (7) (cr) 3. b., including all of the following:

48.47(8)(d)1. 1. Aggregated information from the summary reports transmitted to the governor and appropriate standing committees of the legislature in the preceding calendar year.

48.47(8)(d)2. 2. Trends identified by the department in the summary reports transmitted to the governor and appropriate standing committees of the legislature in the preceding calendar year.